Senate moves forward on vote to appoint Hurwitz to federal bench

WASHINGTON – The Senate on Monday cleared the way for a final vote on Arizona Supreme Court Justice Andrew Hurwitz’s nomination to fill one of two empty seats on the 9th U.S. Circuit Court of Appeals.

The 60-31 vote to limit debate on Hurwitz’s nomination came in the face of arguments that the Senate should exercise “some caution” before “appointing another liberal to the court.”

Sen. Mike Lee, R-Utah, repeated arguments he made before the Judiciary Committee approved Hurwitz’s nomination in March. Lee said he was concerned by Hurwitz’s involvement as a law clerk in the drafting of an opinion almost 40 years ago that supported abortion rights.

But Sen. Dianne Feinstein, D-Calif., said Hurwitz should be judged on his judicial record, noting that “not once has an opinion he’s written been overturned by a higher court.”

The vote to invoke cloture fell largely along party lines, with one Democrat and 30 Republicans voting to continue debate. Eight Republicans – including both Arizona senators – and 52 Democrats voted to cut off debate, meaning an up-or-down vote on the nomination could come in the next few days.

Arizona Sens. John McCain and Jon Kyl have both expressed strong support for Hurwitz. At Hurwitz’s Judiciary Committee hearing, Kyl said it it is “obvious” to those who know the judge why his nomination had been given the highest rating by the bar association, and he called it “unfair” Monday to dredge up the 40-year-old opinion.

“His opinions are well considered, based on the law, well written and generally a part of a consensus court,” Kyl said, according to a transcript of floor remarks Monday. “I absolutely, totally believe that he will decide cases based on the merits of the case and the facts of the law, not based on the politics.”

That support for Hurwitz was echoed Monday by members of Arizona’s legal community.

“On merits, Justice Hurwitz has been a fine judge and proven that he would do a great job if he were to be appointed for the 9th circuit,” said Joe Kanefield, president of the State Bar of Arizona.

Hurwitz was appointed to the state Supreme Court in 2003 and became vice chief justice in 2009. He has taught as an adjunct professor at the Sandra Day O’Connor College of Law at Arizona State University for more than 30 years.

“Hurwitz has served Arizona as a professor, as a lawyer and as a judge. He is one of the great legal minds of the state,” said Doug Sylvester, the dean of the law school.

Hurwitz has been nominated to fill the seat of Judge Mary Schroeder, who retired at the end of 2011. It is one of two vacant seats on the circuit, the largest in the country with 29 judges handling cases from nine states and two U.S. territories.

A spokesman for the court said it would welcome the approval of Hurwitz’s nomination to help relieve the court’s heavy workload.

“He has attained a very high position in judicial ranks of Arizona and you don’t get there without being a high-caliber legal mind,” said David Madden, the court spokesman.

While Hurwitz’s nomination has been cleared for a vote, the nomination of another prospective federal judge from Arizona continues to languish. The White House nominated Rosemary Marquez last June to fill a seat on the overburdened U.S. District Court for Arizona, but she has not yet had a hearing before the Judiciary Committee.

Jennifer Guerin Zipps, who was nominated to the district court at the same time as Marquez, was confirmed by the full Senate in October. Hurwitz was nominated Nov. 2 and was approved by March 1 by the committee.

Arizona Supreme Court Justice Andrew Hurwitz, shown here at a Judiciary Committee hearing in January, could see a final vote soon on his nomination to a seat on the 9th U.S. Circuit Court of Appeals after the Senate voted to cut off debate on the nomination.